European and External Relations Committee

Meeting date: Tuesday, March 23, 2010

Official Report 444KB pdf

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Treaty of Lisbon Inquiry

We try to ensure in European negotiations that we are all—England, Wales, Scotland and Northern Ireland; all of the United Kingdom—singing as one from the same hymn sheet. Obviously, that is not always possible; there can be a conflict between the Welsh version and the Scottish version, or between the Scottish version and the Northern Irish version, or between Westminster and elsewhere. That is why I think that it is good that we have a memorandum of understanding that delineates how we will deal with problems.

I also think that it is good that it is very clear that foreign affairs is not a devolved responsibility. In the end, it is for the UK Government to take the seat and to advance the cause. However, although there may often be differences between views, that does not necessarily mean that any of the partners is undermining the interests of Scotland.

Do further provisions need to be put in place to accommodate the Lisbon treaty’s provisions on involving devolved Administrations and Parliaments? Certainly, some of the evidence that the committee has taken suggests that some sort of procedural mechanism would be helpful.

I understand what you are saying about the conflict resolution process in relation to political differences or perceived interests, but what if there was a legal problem? How would a difference in law be resolved?

I am trying to get an outline of the steps that have been taken to alert Government departments of the extent to which the formal legal competence of the EU was extended in the Lisbon treaty.

There is a very clear process in Government for how we arrive at a Government policy on a given issue. Let us take the external action service that is being proposed. The formal process is for all the different ministers who might have a responsibility in the area, or who might take an interest in it as a Cabinet sub-committee, to write around. If a common view is arrived at as a result, that becomes Government policy. If there is substantial disagreement, a physical meeting of the committee might be needed to establish the policy. If there is no agreement at the meeting, the Prime Minister has to broker a deal. That is the standard Government process for all policy in relation to the European Union or any other matter.

Thanks very much.

10:18 Meeting suspended.

10:20 On resuming—

Thank you very much for joining us today. In this session, we would like to focus on some of the practical implications of the treaty, and explore various ways in which the Scottish perspective is incorporated into the United Kingdom position on EU issues. Normally, we invite witnesses to make an opening statement, but we are fairly tight for time and you are happy to go straight to questions.

I will start with a general question. The Lisbon treaty has extended significantly the range of EU competences and areas of devolved interest. Do you think that current mechanisms are adequate to ensure that there is a Scottish dimension to UK policy making?

In essence, the Scottishness of the British position is guaranteed on several different levels. The first is by the fact that there are Scottish members of Parliament sitting in Westminster, many of whom are in significant posts in Government and who play a key role in determining the UK’s position. In particular, the Secretary of State for Scotland has a role in ensuring that other ministers are fully aware of Scottish interests.

In addition, we have formalised processes for consultation of the Scottish Executive through the joint ministerial committee on Europe and the joint ministerial committee on domestic affairs. Scottish Executive ministers sit on those committees alongside other ministers—that is why they are called the joint ministerial committees. From my experience of the JMCE, which met last week before the European Council meets later this week, it is the key moment when all the devolved Administrations can have significant input into the British line that will be advanced in a meeting. It is also an opportunity to have some fairly broad-horizon discussions about the future and about any specific issues that might have arisen.

On top of that, I understand that individual ministers, such as justice and home affairs ministers, have a good relationship with all the devolved Administrations and want to ensure that, in putting forward the British line, they are informed by the Welsh, Scottish and Northern Irish positions.

Whenever the committee has raised this issue with the relevant minister from the Scottish Executive—of whichever political party—we have been given to understand that there is a slight difficulty in that the memorandum of understanding requires that the agendas, minutes and so on of JMC meetings be kept secret, if you like, or out of the public domain. Could the agendas, or at least a minute of what was discussed and the general areas of agreement, be published in some way?

As I said, the biggest difficulty with doing that is that the JMCE talks about negotiating positions before meetings. Actually, my biggest criticism of the JMCE is that we tend to spend far too much time on process rather than on substance; indeed, that is my general criticism about all matters European. Everybody always wants to have a row about whether a particular meeting should be constructed in this or that particular way. For that matter, Europe itself spent eight years discussing its own rule book, which was not a very helpful time.

I am afraid that I am not offering much comfort, but I am not convinced of the argument. I can see a perfectly good argument why your committee should be able to scrutinise Scottish ministers just as the Westminster Parliament scrutinises me and my colleagues on a pretty constant basis, but I think that scrutinising the meetings between the two sets of ministers would be inappropriate.

One area in which work probably still needs to be done, not by the Government but by the Scottish Parliament and the Westminster Parliament, is on the yellow and orange card system that the Lisbon treaty introduces. It is important that material goes directly to this committee, just as it goes directly to the European Scrutiny Committee. What we then need is a process that would allow you to notify the UK Parliament that you have an issue. Of course, that would probably need to be brought into the standing orders of the Scottish and Westminster Parliaments, but it is a matter for the two Parliaments, not for the Scottish Executive and the UK Government.



10:00

I have a question on on-going preparations for EU council meetings. When I was a minister, I found that different departments had different approaches to the mechanism for seeking a joint UK position. Has any approach to preparing for different EU council meetings been formalised and, if so, is it the same across different departments?

You have mentioned freedom, justice and security issues a couple of times. Jamie Hepburn has a set of questions on those very matters.

Before I specifically explore the UK option to opt in—or, indeed, to opt out—under protocol 21, can you tell us whether there is any unique Scottish interest in freedom, security and justice and whether the existing mechanisms ensure that the Scottish dimension is adequately represented in any UK policy position?

The present system works pretty well. However, one of the real strengths of what we secured in the Lisbon treaty is the United Kingdom’s opt-in, which I think is the interests of Scotland as well as those of the whole UK. The fact that for many centuries now Scotland has had a different legal system should be firmly recognised.

My understanding is that for the most part we are proceeding along similar tracks. Where there is real benefit in dealing with international crime, migration issues and a range of other problems, the UK will mostly want to opt in, and the Scottish Executive has adopted the same position.

Given that Scotland’s legal system is, as you mentioned, distinct from that in the rest of the UK, and given the unique Scottish dimension in freedom, security and justice, what steps are being taken to ensure that there is appropriate scrutiny by the Scottish Parliament—and I emphasise the word “Parliament”—and the Scottish Government of any opt-in decision that the UK Government might take?

I do not think that that is a job for the Westminster Government. The Scottish Executive needs to ensure, first, that it is accountable to the Parliament and, secondly, that it makes its case to the UK.

We are very pleased with the Stockholm programme and the various justice and home affairs issues that are coming up in the next 18 months, because they very much follow an agenda, particularly on child safety, that we have been keen to pursue.





Since March last year we have agreed that, where there are differing views between Scottish ministers and Westminster ministers, there will be a JMC domestic meeting to resolve the issue, which will be chaired by a senior Cabinet minister. So far, however, that process has not been needed.

The accountability of ministers in the Scottish Executive is a matter that you must resolve with them. I certainly feel that I am very closely scrutinised in the Westminster Parliament.

I hear what you are saying about the fact that the UK Government and Scottish Government positions have, by and large, been the same on freedom, security and justice. However, we have received evidence from Professor Michael Keating, a professor of politics at the University of Aberdeen, who has suggested that, at the end of the transition period in FSJ,

“there may be a clash with Scottish interests, should the UK want to opt out and Scotland to stay in.”

How would such a conflict be resolved? Would that just be done through the JMC?

Good morning, minister. Under the relevant concordat, the UK Government is required to provide the devolved Administrations with full and comprehensive information, as early as possible, on all business within the framework of the European Union that is likely to be of interest to the devolved Administrations. What steps have been taken to alert Government departments of the extent to which the formal legal competence of the EU was extended in the Lisbon treaty?

Do you mean Government departments in Westminster?

We have a wide range of different groupings through which civil servants in each of the departments that have a role in council meetings gather together. The legal structure of Government ensures that every department is fully aware of its responsibilities in relation to Europe. One difficulty is the number of ministers for various departments who relate to the European Union. One thing that we probably ought to do more effectively is to get together all those ministers. Thanks to codecision, the European Parliament will now play a much more important role. We probably need to co-ordinate our efforts better in lobbying the European Parliament.

What about the people who are involved in preparing explanatory memoranda? Are they required to take into account the increased range of areas of EU intervention that are of devolved interest?

10:15

Good morning, everyone, and welcome to the fifth meeting in 2010 of the European and External Relations Committee. No apologies have been received today.

Item 1 is our Treaty of Lisbon inquiry. I welcome from London via videoconference link Minister for Europe Chris Bryant MP, and Matthew Rycroft, who is the director of European Union affairs for Her Majesty’s Government. Good morning. Can you hear us all right?

Yes—we can hear you.

You mentioned the JMC on Europe. I have to say that, from the perspective of this committee, it is a little bit of a black box, because it is difficult to undertake parliamentary scrutiny of the discussions, which take place in private and which seem to be kept secret. We are trying to work out how we can ensure that there is a Scottish Parliament imprint on the UK position. Given that the JMC on Europe is one of the mechanisms for that, do you have any thoughts about how we might open up that black box a bit and find out more about the positions that are being taken at the JMC?

Do you mean which positions are being taken by the Scottish Executive? That is a matter for the committee, I guess, in scrutinising the Scottish Executive and holding it to account, just as the positions that I advance are scrutinised by the European Scrutiny Committee of the House of Commons and the European committees of the House of Lords.

I am not sure that Government-to-Government relations—that is, relations between the Scottish Executive and the UK Government—could be opened up as you suggest, not least because an important element of what the JMCE does is to talk about negotiating positions. As I have discussed with the European Scrutiny Committee of the House of Commons, one danger in revealing our hand on everything before European Council meetings is that our opponents—those who want to move us in a different direction—would likely take advantage of that.

In the event of a conflict of interest arising over a matter that comes within the competence of the Scottish Parliament, how can we ensure that the Scottish perspective has been fully represented and addressed? What cognisance of that is taken in the UK’s position?

The expectation is that all departments will work closely with the devolved Administrations to ensure that every policy element has been thoroughly explored. Things might happen more readily if the individuals in question get on better, but with regard to justice and home affairs—I should point out that it is not my responsibility—I understand that the arrangements work pretty effectively. I think that Jim Murphy has written to the House of Commons Scottish Affairs Committee and, I presume, to this committee laying out how often representatives from the devolved Administrations had taken the British seat at council meetings. After all, we share for the most part entirely the same set of issues and policy lines.

I challenge that idea of a clash with the Scottish interest. There might be a difference of views between the Scottish Executive and the Westminster Government, but a view is not necessarily the same thing as the Scottish interest. I would argue that, in some areas, the Scottish Executive—certainly as it is presently composed—does not always represent the Scottish interest. I will leave that political point aside, however: the most important issue will arise when we reach a significant clash. A memorandum of understanding was set out on 10 March last year, which makes it clear that if there is a difference of views there will be a JMC domestic meeting, chaired by a senior UK minister, at which the matter will be resolved.

Foreign affairs is not a devolved responsibility, so if there is no means of resolution, the UK Government wins, I am afraid. It is the UK Government that decides who it puts in the chair and who advances the argument. If it is a Scottish Executive minister who sits in the British chair at a Council meeting, that minister must advance the UK argument, not just their own personal or Scottish argument.

I will leave to one side my own political observation that I think that the UK Government sometimes does not reflect the Scottish interest. I suppose it is a matter of individual or political perspective.

Given that the legal system in Scotland is different to that of the rest of the United Kingdom, has there been any exploration of circumstances in which Scotland could opt in while the rest of the UK opts out of an FSJ area? Is that a possibility, or is that impossible, given that the UK is the member state?

That is absolutely right: it would not be possible, because the UK is the member state, for Scotland to opt in and the rest of the UK not to do so.

I want to return to this issue, however. I get really frustrated—verging on angry—with the fact that Europe is always about process, never substance. People come up with theoretical positions that never happen. I would much prefer to deal with the substance of an issue rather than with constant matters of process.

If somebody wishes to present such a case to me, I will look at it and we will see how we can resolve it. As I say, people keep coming up with “What if ...?” So far, I have not been aware of any major, material differences that it has not been possible to resolve.

I will give a general example. Sir David Edward who was a judge in the European Court of Justice has suggested to the committee that the position of the European public prosecutor could present a difficulty in legal terms. He said that, although it might fit within the Scottish legal system, it may not fit within the UK legal system. Given the technical nature of the question, you may be unable to respond today, but perhaps you will come back to us on the matter, given that it was raised with the committee.

I confess that I am not an expert on the Scottish legal system. I am happy to write to the committee on that.

As I said, the process would be the same. An initial discussion would take place between the justice and home affairs ministers at the point at which we had to make a decision on opting in. If a difference of view or legality were to emerge, ministers would try to iron it out among themselves. If that was not possible, a JMC domestic meeting would be held to try to reach a common position. In the end, coming to a common position is in the UK’s interest.

Thank you. We are running a little bit short of time and we have one further area of questioning, which is extension of EU competencies.

I am sorry, but I do not quite understand the second half of the question. I am fully with the first half. We provide—

Yes, indeed.

Are there any standard procedures and timescales for seeking and reflecting views? How is any policy divergence resolved? Is anything laid out in regular guidance?

Any legislative act that is going through the European process has to come for scrutiny to the Westminster Parliament. We have an eight-week process, which we occasionally have to override, normally for matters of security. The process is pretty robust. The European Scrutiny Committee goes through a sifting process to decide which issues require a specific debate—that might lead to a vote in the House of Commons. The Government might decide to take specific issues to the floor of the House of Commons, too.

We have nearly run out of time, but I would like clarification on a couple of points. You said that you will write to us about what happens when there is a legal difference, rather than just a political one, between the Scottish position and the UK one.

On the JMCE, on several occasions, we have had Scottish ministers at the committee and tried to exercise some scrutiny, but they keep telling us that they cannot tell us what they said at the JMCE because the meeting is Government to Government and therefore confidential. Can I take from what you have said that the UK Government does not have a difficulty with the committee asking a Scottish minister what position they adopted or what items they put on the agenda in relation to Scottish devolved matters? Would that be a problem? I really want to clarify that.

If I was a member of your committee, I would say that it is not good enough for a minister to blame the UK Government for somehow not allowing them to tell you what they said at the JMCE. The UK Government would be absolutely happy for Scottish Executive ministers, either in open session or in closed session if that is what you prefer, to talk about what they say in JMCE meetings. The European Scrutiny Committee would send me off having boxed my ears aggressively if I were to try to use an argument that was based on secrecy.

It is difficult to put draft Council decisions in the public arena because they change all the time. They are part of a negotiating process and we do not always want to reveal our hand in that process. Nonetheless, we have decided to provide draft Council decisions to the European Scrutiny Committee and the House of Lords European Union Select Committee on a confidential basis and on the understanding—which I am sure those committees will fully respect—that the information is not for public dissemination. We are doing that in order better to inform those committees’ understanding of what we are up to.

That has been a useful exchange of information. I thank you for giving evidence to the committee by videolink. I am sure that you will watch this space closely to see our final report.